[House Report 107-140]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 107-140
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UNITED STATES RELATIONSHIP WITH NATIVE HAWAIIANS
_______
July 16, 2001.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hansen, from the Committee on Resources, submitted the following
R E P O R T
[To accompany H.R. 617]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 617) to express the policy of the United States regarding
the United States relationship with Native Hawaiians, to
provide a process for the reorganization of a Native Hawaiian
government and the recognition by the United States of the
Native Hawaiian government, and for other purposes, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. FINDINGS.
Congress makes the following findings:
(1) The Constitution vests Congress with the authority to
address the conditions of the indigenous, native people of the
United States.
(2) Native Hawaiians, the native people of the Hawaiian
archipelago which is now part of the United States, are
indigenous, native people of the United States.
(3) The United States has a special trust relationship to
promote the welfare of the native people of the United States,
including Native Hawaiians.
(4) Under the treaty making power of the United States,
Congress exercised its constitutional authority to confirm a
treaty between the United States and the government that
represented the Hawaiian people, and from 1826 until 1893, the
United States recognized the independence of the Kingdom of
Hawaii, extended full diplomatic recognition to the Hawaiian
Government, and entered into treaties and conventions with the
Hawaiian monarchs to govern commerce and navigation in 1826,
1842, 1849, 1875, and 1887.
(5) Pursuant to the provisions of the Hawaiian Homes
Commission Act, 1920 (42 Stat. 108, chapter 42), the United
States set aside 203,500 acres of land in the Federal territory
that later became the State of Hawaii to address the conditions
of Native Hawaiians.
(6) By setting aside 203,500 acres of land for Native
Hawaiian homesteads and farms, the Act assists the Native
Hawaiian community in maintaining distinct native settlements
throughout the State of Hawaii.
(7) Approximately 6,800 Native Hawaiian lessees and their
family members reside on Hawaiian Home Lands and approximately
18,000 Native Hawaiians who are eligible to reside on the Home
Lands are on a waiting list to receive assignments of land.
(8) In 1959, as part of the compact admitting Hawaii into the
United States, Congress established the Ceded Lands Trust for 5
purposes, 1 of which is the betterment of the conditions of
Native Hawaiians. Such trust consists of approximately
1,800,000 acres of land, submerged lands, and the revenues
derived from such lands, the assets of which have never been
completely inventoried or segregated.
(9) Throughout the years, Native Hawaiians have repeatedly
sought access to the Ceded Lands Trust and its resources and
revenues in order to establish and maintain native settlements
and distinct native communities throughout the State.
(10) The Hawaiian Home Lands and the Ceded Lands provide an
important foundation for the ability of the Native Hawaiian
community to maintain the practice of Native Hawaiian culture,
language, and traditions, and for the survival of the Native
Hawaiian people.
(11) Native Hawaiians have maintained other distinctly native
areas in Hawaii.
(12) On November 23, 1993, Public Law 103-150 (107 Stat.
1510) (commonly known as the Apology Resolution) was enacted
into law, extending an apology on behalf of the United States
to the Native people of Hawaii for the United States role in
the overthrow of the Kingdom of Hawaii.
(13) The Apology Resolution acknowledges that the overthrow
of the Kingdom of Hawaii occurred with the active participation
of agents and citizens of the United States and further
acknowledges that the Native Hawaiian people never directly
relinquished their claims to their inherent sovereignty as a
people over their national lands to the United States, either
through their monarchy or through a plebiscite or referendum.
(14) The Apology Resolution expresses the commitment of
Congress and the President to acknowledge the ramifications of
the overthrow of the Kingdom of Hawaii and to support
reconciliation efforts between the United States and Native
Hawaiians; and to have Congress and the President, through the
President's designated officials, consult with Native Hawaiians
on the reconciliation process as called for under the Apology
Resolution.
(15) Despite the overthrow of the Hawaiian Government, Native
Hawaiians have continued to maintain their separate identity as
a distinct native community through the formation of cultural,
social, and political institutions, and to give expression to
their rights as native people to self-determination and self-
governance as evidenced through their participation in the
Office of Hawaiian Affairs.
(16) Native Hawaiians also give expression to their rights as
native people to self-determination and self-governance through
the provision of governmental services to Native Hawaiians,
including the provision of health care services, educational
programs, employment and training programs, children's
services, conservation programs, fish and wildlife protection,
agricultural programs, native language immersion programs and
native language immersion schools from kindergarten through
high school, as well as college and master's degree programs in
native language immersion instruction, and traditional justice
programs, and by continuing their efforts to enhance Native
Hawaiian self-determination and local control.
(17) Native Hawaiians are actively engaged in Native Hawaiian
cultural practices, traditional agricultural methods, fishing
and subsistence practices, maintenance of cultural use areas
and sacred sites, protection of burial sites, and the exercise
of their traditional rights to gather medicinal plants and
herbs, and food sources.
(18) The Native Hawaiian people wish to preserve, develop,
and transmit to future Native Hawaiian generations their
ancestral lands and Native Hawaiian political and cultural
identity in accordance with their traditions, beliefs, customs
and practices, language, and social and political institutions,
and to achieve greater self-determination over their own
affairs.
(19) This Act provides for a process within the framework of
Federal law for the Native Hawaiian people to exercise their
inherent rights as a distinct aboriginal, indigenous, native
community to reorganize a Native Hawaiian governing entity for
the purpose of giving expression to their rights as native
people to self-determination and self-governance.
(20) The United States has declared that--
(A) the United States has a special responsibility
for the welfare of the native peoples of the United
States, including Native Hawaiians;
(B) Congress has identified Native Hawaiians as a
distinct indigenous group within the scope of its
Indian affairs power, and has enacted dozens of
statutes on their behalf pursuant to its recognized
trust responsibility; and
(C) Congress has also delegated broad authority to
administer a portion of the Federal trust
responsibility to the State of Hawaii.
(21) The United States has recognized and reaffirmed the
special trust relationship with the Native Hawaiian people
through the enactment of the Act entitled ``An Act to provide
for the admission of the State of Hawaii into the Union'',
approved March 18, 1959 (Public Law 86-3; 73 Stat. 4) by--
(A) ceding to the State of Hawaii title to the public
lands formerly held by the United States, and mandating
that those lands be held in public trust for 5
purposes, one of which is for the betterment of the
conditions of Native Hawaiians; and
(B) transferring the United States responsibility for
the administration of the Hawaiian Home Lands to the
State of Hawaii, but retaining the authority to enforce
the trust, including the exclusive right of the United
States to consent to any actions affecting the lands
which comprise the corpus of the trust and any
amendments to the Hawaiian Homes Commission Act, 1920
(42 Stat. 108, chapter 42) that are enacted by the
legislature of the State of Hawaii affecting the
beneficiaries under the Act.
(22) The United States continually has recognized and
reaffirmed that--
(A) Native Hawaiians have a cultural, historic, and
land-based link to the aboriginal, native people who
exercised sovereignty over the Hawaiian Islands;
(B) Native Hawaiians have never relinquished their
claims to sovereignty or their sovereign lands;
(C) the United States extends services to Native
Hawaiians because of their unique status as the
aboriginal, native people of a once sovereign nation
with whom the United States has a political and legal
relationship; and
(D) the special trust relationship of American
Indians, Alaska Natives, and Native Hawaiians to the
United States arises out of their status as aboriginal,
indigenous, native people of the United States.
SEC. 2. DEFINITIONS.
In this Act:
(1) Aboriginal, indigenous, native people.--The term
``aboriginal, indigenous, native people'' means those people
whom Congress has recognized as the original inhabitants of the
lands and who exercised sovereignty prior to European contact
in the areas that later became part of the United States.
(2) Apology resolution.--The term ``Apology Resolution''
means Public Law 103-150 (107 Stat. 1510), a joint resolution
extending an apology to Native Hawaiians on behalf of the
United States for the participation of agents of the United
States in the January 17, 1893 overthrow of the Kingdom of
Hawaii.
(3) Ceded lands.--The term ``ceded lands'' means those lands
which were ceded to the United States by the Republic of Hawaii
under the Joint Resolution to provide for annexing the Hawaiian
Islands to the United States of July 7, 1898 (30 Stat. 750),
and which were later transferred to the State of Hawaii in the
Act entitled ``An Act to provide for the admission of the State
of Hawaii into the Union'' approved March 18, 1959 (Public Law
86-3; 73 Stat. 4).
(4) Indigenous, native people.--The term ``indigenous, native
people'' means the lineal descendants of the aboriginal,
indigenous, native people of the United States.
(5) Interagency coordinating group.--The term ``Interagency
Coordinating Group'' means the Native Hawaiian Interagency
Coordinating Group established under section 5.
(6) Native hawaiian.--
(A) Prior to the recognition by the United States of
the Native Hawaiian governing entity, the term ``Native
Hawaiian'' means the indigenous, native people of
Hawaii who are the direct lineal descendants of the
aboriginal, indigenous, native people who resided in
the islands that now comprise the State of Hawaii on or
before January 1, 1893, and who occupied and exercised
sovereignty in the Hawaiian archipelago, including the
area that now constitutes the State of Hawaii, and
includes all Native Hawaiians who were eligible in 1921
for the programs authorized by the Hawaiian Homes
Commission Act (42 Stat. 108, chapter 42) and their
lineal descendants.
(B) Following the recognition by the United States of
the Native Hawaiian governing entity, the term ``Native
Hawaiian'' shall have the meaning given to such term in
the organic governing documents of the Native Hawaiian
governing entity.
(7) Native hawaiian governing entity.--The term ``Native
Hawaiian governing entity'' means the governing entity
organized by the Native Hawaiian people.
(8) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
SEC. 3. UNITED STATES POLICY AND PURPOSE.
(a) Policy.--The United States reaffirms that--
(1) Native Hawaiians are a unique and distinct, indigenous,
native people, with whom the United States has a political and
legal relationship;
(2) the United States has a special trust relationship to
promote the welfare of Native Hawaiians;
(3) Congress possesses the authority under the Constitution
to enact legislation to address the conditions of Native
Hawaiians and has exercised this authority through the
enactment of--
(A) the Hawaiian Homes Commission Act, 1920 (42 Stat.
108, chapter 42);
(B) the Act entitled ``An Act to provide for the
admission of the State of Hawaii into the Union'',
approved March 18, 1959 (Public Law 86-3; 73 Stat. 4);
and
(C) more than 150 other Federal laws addressing the
conditions of Native Hawaiians;
(4) Native Hawaiians have--
(A) an inherent right to autonomy in their internal
affairs;
(B) an inherent right of self-determination and self-
governance; and
(C) the right to reorganize a Native Hawaiian
governing entity; and
(5) the United States shall continue to engage in a process
of reconciliation and political relations with the Native
Hawaiian people.
(b) Purpose.--It is the intent of Congress that the purpose of this
Act is to provide a process for the recognition by the United States of
a Native Hawaiian governing entity for purposes of continuing a
government-to-government relationship.
SEC. 4. ESTABLISHMENT OF THE UNITED STATES OFFICE FOR NATIVE HAWAIIAN
RELATIONS.
(a) In General.--There is established within the Office of the
Secretary the United States Office for Native Hawaiian Relations.
(b) Duties of the Office.--The United States Office for Native
Hawaiian Relations shall--
(1) effectuate and coordinate the trust relationship between
the Native Hawaiian people and the United States, and upon the
recognition of the Native Hawaiian governing entity by the
United States, between the Native Hawaiian governing entity and
the United States through the Secretary, and with all other
Federal agencies;
(2) continue the process of reconciliation with the Native
Hawaiian people, and upon the recognition of the Native
Hawaiian governing entity by the United States, continue the
process of reconciliation with the Native Hawaiian governing
entity;
(3) fully integrate the principle and practice of meaningful,
regular, and appropriate consultation with the Native Hawaiian
governing entity by providing timely notice to, and consulting
with the Native Hawaiian people and the Native Hawaiian
governing entity prior to taking any actions that may have the
potential to significantly affect Native Hawaiian resources,
rights, or lands;
(4) consult with the Interagency Coordinating Group, other
Federal agencies, and with relevant agencies of the State of
Hawaii on policies, practices, and proposed actions affecting
Native Hawaiian resources, rights, or lands; and
(5) prepare and submit to the Committee on Indian Affairs and
the Committee on Energy and Natural Resources of the Senate,
and the Committee on Resources of the House of Representatives
an annual report detailing the activities of the Interagency
Coordinating Group that are undertaken with respect to the
continuing process of reconciliation and to effect meaningful
consultation with the Native Hawaiian governing entity and
providing recommendations for any necessary changes to existing
Federal statutes or regulations promulgated under the authority
of Federal law.
SEC. 5. NATIVE HAWAIIAN INTERAGENCY COORDINATING GROUP.
(a) Establishment.--In recognition of the fact that Federal programs
authorized to address the conditions of Native Hawaiians are largely
administered by Federal agencies other than the Department of the
Interior, there is established an interagency coordinating group to be
known as the ``Native Hawaiian Interagency Coordinating Group''.
(b) Composition.--The Interagency Coordinating Group shall be
composed of officials, to be designated by the President, from--
(1) each Federal agency that administers Native Hawaiian
programs, establishes or implements policies that affect Native
Hawaiians, or whose actions may significantly or uniquely
impact on Native Hawaiian resources, rights, or lands; and
(2) the United States Office for Native Hawaiian Relations
established under section 4.
(c) Lead Agency.--The Department of the Interior shall serve as the
lead agency of the Interagency Coordinating Group, and meetings of the
Interagency Coordinating Group shall be convened by the lead agency.
(d) Duties.--The responsibilities of the Interagency Coordinating
Group shall be--
(1) the coordination of Federal programs and policies that
affect Native Hawaiians or actions by any agency or agencies of
the Federal Government which may significantly or uniquely
impact on Native Hawaiian resources, rights, or lands;
(2) to assure that each Federal agency develops a policy on
consultation with the Native Hawaiian people, and upon
recognition of the Native Hawaiian governing entity by the
United States, consultation with the Native Hawaiian governing
entity; and
(3) to assure the participation of each Federal agency in the
development of the report to Congress authorized in section
4(b)(5).
SEC. 6. PROCESS FOR THE RECOGNITION OF THE NATIVE HAWAIIAN GOVERNING
ENTITY.
(a) Recognition of the Native Hawaiian Governing Entity.--The right
of the Native Hawaiian people to organize for their common welfare and
to adopt appropriate organic governing documents is hereby recognized
by the United States.
(b) Process for Recognition.--
(1) Submittal of organic governing documents.--Following the
organization of the Native Hawaiian governing entity, the
adoption of organic governing documents, and the election of
officers of the Native Hawaiian governing entity, the duly
elected officers of the Native Hawaiian governing entity shall
submit the organic governing documents of the Native Hawaiian
governing entity to the Secretary.
(2) Certifications.--
(A) In general.--Within 90 days of the date that the
duly elected officers of the Native Hawaiian governing
entity submit the organic governing documents to the
Secretary, the Secretary shall certify that the organic
governing documents--
(i) establish the criteria for citizenship in
the Native Hawaiian governing entity;
(ii) were adopted by a majority vote of the
citizens of the Native Hawaiian governing
entity;
(iii) provide for the exercise of
governmental authorities by the Native Hawaiian
governing entity;
(iv) provide for the Native Hawaiian
governing entity to negotiate with Federal,
State, and local governments, and other
entities;
(v) prevent the sale, disposition, lease, or
encumbrance of lands, interests in lands, or
other assets of the Native Hawaiian governing
entity without the consent of the Native
Hawaiian governing entity;
(vi) provide for the protection of the civil
rights of the citizens of the Native Hawaiian
governing entity and all persons subject to the
authority of the Native Hawaiian governing
entity, and ensure that the Native Hawaiian
governing entity exercises its authority
consistent with the requirements of section 202
of the Act of April 11, 1968 (25 U.S.C. 1302);
and
(vii) are consistent with applicable Federal
law and the special trust relationship between
the United States and the indigenous native
people of the United States.
(B) By the secretary.--Within 90 days of the date
that the duly elected officers of the Native Hawaiian
governing entity submit the organic governing documents
to the Secretary, the Secretary shall certify that the
State of Hawaii supports the recognition of the Native
Hawaiian governing entity by the United States as
evidenced by a resolution or act of the Hawaii State
legislature.
(C) Resubmission in case of noncompliance.--
(i) Resubmission by the secretary.--If the
Secretary determines that the organic governing
documents do not address the criteria described
in subparagraph (A) or that the organic
governing documents, or any part thereof, are
not consistent with other applicable Federal
law, the Secretary shall resubmit the organic
governing documents to the duly elected
officers of the Native Hawaiian governing
entity along with a justification for each of
the Secretary's findings as to why the
provisions are not consistent with such law.
(ii) Amendment and resubmission by the native
hawaiian governing entity.--If the organic
governing documents are resubmitted to the duly
elected officers of the Native Hawaiian
governing entity by the Secretary under clause
(i), the duly elected officers of the Native
Hawaiian governing entity shall--
(I) amend the organic governing
documents to ensure that the documents
comply with applicable Federal law and
address the criteria described in
subparagraph (A); and
(II) resubmit the amended organic
governing documents to the Secretary
for certification in accordance with
the requirements of this paragraph.
(D) Certifications deemed made.--The certifications
authorized in subparagraph (A) shall be deemed to have
been made if the Secretary has not acted within 90 days
of the date that the duly elected officers of the
Native Hawaiian governing entity have submitted the
organic governing documents of the Native Hawaiian
governing entity to the Secretary.
(3) Federal recognition.--Notwithstanding any other provision
of law, upon the election of the officers of the Native
Hawaiian governing entity and the certifications by the
Secretary required under paragraph (2), the United States
hereby extends Federal recognition to the Native Hawaiian
governing entity as the representative governing body of the
Native Hawaiian people.
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated such sums as may be necessary
to carry out the activities authorized in this Act.
SEC. 8. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY; NEGOTIATIONS.
(a) Reaffirmation.--The delegation by the United States of authority
to the State of Hawaii to address the conditions of the indigenous,
native people of Hawaii contained in the Act entitled ``An Act to
provide for the admission of the State of Hawaii into the Union''
approved March 18, 1959 (Public Law 86-3; 73 Stat. 5) is hereby
reaffirmed.
(b) Negotiations.--Upon the Federal recognition of the Native
Hawaiian governing entity by the United States, the United States is
authorized to negotiate and enter into an agreement with the State of
Hawaii and the Native Hawaiian governing entity regarding the transfer
of lands, resources, and assets dedicated to Native Hawaiian use to the
Native Hawaiian governing entity. Nothing in this Act is intended to
serve as a settlement of any claims against the United States.
SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.
(a) Indian Gaming Regulatory Act.--Nothing contained in this Act
shall be construed as an authorization for the Native Hawaiian
governing entity to conduct gaming activities under the authority of
the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.).
(b) Bureau of Indian Affairs.--Nothing contained in this Act shall be
construed as an authorization for eligibility to participate in any
programs and services provided by the Bureau of Indian Affairs for any
persons not otherwise eligible for such programs or services.
SEC. 10. SEVERABILITY.
In the event that any section or provision of this Act is held
invalid, it is the intent of Congress that the remaining sections or
provisions of this Act shall continue in full force and effect.
PURPOSE OF THE BILL
The purpose of H.R. 617 is to express the policy of the
United States regarding the United States relationship with
Native Hawaiians, to provide a process for the reorganization
of a Native Hawaiian government and the recognition by the
United States of the Native Hawaiian government, and for other
purposes.
BACKGROUND AND NEED FOR LEGISLATION
On January 17, 1893, with the assistance of the United
States Minister and U.S. marines, the government of the Kingdom
of Hawaii was overthrown. One hundred years later, a resolution
extending an apology on behalf of the United States to Native
Hawaiians for the illegal overthrow of the Native Hawaiian
government and calling for a reconciliation of the relationship
between the United States and Native Hawaiians was enacted into
law (Public Law 103-150). The Apology Resolution acknowledges
that the overthrow of the Kingdom of Hawaii occurred with the
active participation of agents and citizens of the United
States and further acknowledges that the Native Hawaiian people
never directly relinquished their claims to their inherent
sovereignty as a people over their national lands to the United
States, either through their government or through a plebiscite
or referendum.
In December 1999, under President Clinton, the U.S.
Departments of the Interior and Justice initiated a process of
reconciliation in response to the Apology Resolution by
conducting meetings in Native Hawaiian communities on each of
the principal islands in the State of Hawaii and culminating in
two days of open hearings. In each setting, members of the
Native Hawaiian community identified what they believe are the
necessary elements of a process to provide for the
reconciliation of the relationship between the United States
and the Native Hawaiian people. A draft report, entitled ``From
Mauka to Makai: The River of Justice Must Flow Freely'', was
issued by the two departments on October 23, 2000. The
principal recommendation contained in the Clinton
Administration's report is set forth below:
Recommendation 1. It is evident from the
documentation, statements, and views received during
the reconciliation process undertaken by Interior and
Justice pursuant to Public Law 103-150 (1993), that the
Native Hawaiian people continue to maintain a distinct
community and certain governmental structures and they
desire to increase their control over their own affairs
and institutions. As a matter of justice and equity,
this report recommends that the Native Hawaiian people
should have self-determination over their own affairs
within the framework of Federal law, as do Native
American tribes. For generations, the United States has
recognized the rights and promoted the welfare of
Native Hawaiians as an indigenous people within our
Nation through legislation, administrative action, and
policy statements. To safeguard and enhance Native
Hawaiian self-determination over their lands, cultural
resources, and internal affairs, the Departments
believe Congress should enact further legislation to
clarify Native Hawaiians' political status and to
create a framework for recognizing a government-to-
government relationship with a representative Native
Hawaiian governing body.
H.R. 617 provides a process for the reorganization of a
Native Hawaiian governing entity, and upon certification by the
Secretary of the Interior that the organic governing documents
of the Native Hawaiian governing entity are consistent with
federal law and the trust relationship between the United
States and the indigenous, native people of the United States,
H.R. 617 provides for the recognition of the Native Hawaiian
governing entity by the United States for purposes of carrying
on a government-to-government relationship with the Native
Hawaiian governing entity.
Office of Hawaiian Affairs
With the loss of their government in 1893, Native Hawaiians
have sought to maintain political authority within their
community. In 1978, the citizens of the State of Hawaii
recognized the long-standing efforts of the native people to
give expression to their rights to self-determination and self-
governance by amending the State constitution in an attempt to
provide for the establishment of a quasi-sovereign State
agency, the Office of Hawaiian Affairs. The State constitution,
as amended, provides that the Office is to be governed by nine
trustees who are Native Hawaiian and who are to be elected by
Native Hawaiians. The Office administers programs and services
with revenues derived from lands which were ceded back to the
State of Hawaii upon its admission into the United States. The
dedication of these revenues reflects the provisions of the
1959 Hawaii Admissions Act, which provides that the ceded lands
and the revenues derived therefrom should be held by the State
of Hawaii as a public trust for five purposes--one of which is
the betterment of the conditions of Native Hawaiians. The
Admissions Act also provided that the new State assumes a trust
responsibility for approximately 203,500 acres of land that had
previously been set aside under federal law in 1921 for Native
Hawaiians in the Hawaiian Homes Commission Act.
On February 23, 2000, the United States Supreme Court
issued a ruling in the case of Rice v. Cayetano. The Supreme
Court held that because the Office of Hawaiian Affairs is an
agency of the State of Hawaii that is funded in part by
appropriations made by the State legislature, the election for
the trustees of the Office of Hawaiian Affairs must be open to
all citizens of the State of Hawaii who are otherwise eligible
to vote in statewide elections.
The nine Native Hawaiian trustees of the Office of Hawaiian
Affairs subsequently resigned their positions, and an election
to fill the trustee positions was held on November 7, 2000. All
citizens of the State of Hawaii who were otherwise eligible to
vote in statewide elections were entitled to cast their ballots
for the 97 candidates who registered to run for the Office of
Hawaiian Affairs trustee positions.
The native people of Hawaii were thus divested of the
mechanism that was established under the Hawaii State
Constitution that, since 1978, has enabled them to give
expression to their rights as indigenous, native people of the
United States to self-determination and self-governance. H.R.
617 is designed to address these developments by providing a
means underfederal law, consistent with the federal policy of
self-determination and self-governance for America's indigenous, native
people, for Native Hawaiians to have a status similar to that of the
other indigenous, native people of the United States.
COMMITTEE ACTION
H.R. 617 was introduced by Congressman Neil Abercrombie (D-
HI) on February 14, 2001, and was referred to the Committee on
Resources. On May 16, 2001, the Committee met to consider the
bill. Congressman Abercrombie offered an amendment in the
nature of a substitute with mirrored a companion Senate measure
(S. 746). The amendment was adopted by voice vote, and the
bill, as amended, was ordered favorably reported to the House
of Representatives by voice vote.
During the 106th Congress, Congressman Abercrombie
introduced H.R. 4904, a predecessor to H.R. 617. Five days of
joint hearings were held on the bill by the Resources Committee
and the Senate Indian Affairs Committee in Hawaii from August
28, 2000, through September 1, 2000. H.R. 4904 was approved by
the House of Representatives on September 26, 2000. H.R. 4904
failed to pass the Senate before the sine die adjournment of
the 106th Congress.
SECTION-BY-SECTION ANALYSIS
Section 1. Findings
This section sets forth Congress' findings. Findings (1)
through (4) reflect Congress' recognition of Native Hawaiians
as the native people of the United States and Hawaii. Findings
(5) through (7) reflect Congress' determination of the need to
address the conditions of Native Hawaiians through the Hawaiian
Homes Commission Act of 1920. Findings (8) and (9) reflect
Congress' establishment of the Ceded Lands Trust as a condition
of statehood for the State of Hawaii. Finding (10) reflects the
importance of the Hawaiian Home Lands and Ceded Lands to Native
Hawaiians as a foundation for the Native Hawaiian community for
the survival of the Native Hawaiian people. Finding (11) notes
that Native Hawaiians have maintained other distinctly native
areas. Findings (12) through (14) reflect the effect of the
Apology Resolution. Findings (15) through (19) reflect the
Native Hawaiian community as a ``distinctly'' native community.
Finding (20) reflects the position of the United States before
the U.S. Supreme Court in the case of Rice v. Cayetano.
Findings (21) and (22) reaffirm the special trust relationship
between the Native Hawaiian people and the United States.
Section 2. Definitions
This section sets forth definitions of terms used in the
bill. Defined terms are: Aboriginal, Indigenous, Native People;
Apology Resolution; Ceded Lands; Indigenous, Native People;
Interagency Coordinating Group; Native Hawaiian; Native
Hawaiian Governing Entity; and Secretary.
Section 3. United States Policy and Purpose
This section reaffirms that Native Hawaiians are an
aboriginal, indigenous, native people with whom the United
States has a trust relationship and states Congress' intent to
provide a process for federal recognition of a Native Hawaiian
governing entity for purposes of continuing a government-to-
government relationship.
Section 4. Establishment of the United States Office for Native
Hawaiian Relations
This provision authorizes the establishment of the United
States Office for Native Hawaiian Relations within the Office
of the Secretary of the Department of the Interior. The United
States Office for Native Hawaiian Relations is charged with:
(1) effectuating and coordinating the special trust
relationship between the Native Hawaiian people and the United
States; (2) continuing the process of reconciliation; (3)
conducting meaningful, regular, and appropriate consultation
with the Native Hawaiian people and Native Hawaiian governing
entity regarding any actions that may have the potential to
significantly affect Native Hawaiian resources, rights, or
lands; (4) consulting with the Native Hawaiian Coordinating
Group, other federal agencies, and with the State of Hawaii on
policies, practices, and proposed actions affecting Native
Hawaiian resources, rights, or lands; and (5) preparing and
submitting to the Senate Committee on Indian Affairs, Senate
Committee on Energy and Natural Resources, and House Resources
Committee an annual report detailing the Interagency
Coordinating Group's activities regarding the reconciliation
process, consultation with the Native Hawaiian people, and
recommendations of necessary changes to existing federal
statutes.
The United States Office for Native Hawaiian Relations
would serve as a liaison between the Native Hawaiian people and
the United States for the purposes of assisting with the
process of federal recognition of the Native Hawaiian governing
entity, continuing the reconciliation process, and ensuring
proper consultation with the Native Hawaiian people for any
federal policy impacting Native Hawaiians. The United States
Office for Native Hawaiian Relations would not assume the
responsibility or authority for any of the federal programs
established to address the conditions of Native Hawaiians. All
federal programs established and administered by federal
agencies will remain with those agencies.
Section 5. Native Hawaiian Interagency Coordinating Group
This section recognizes that because federal programs
authorized to address the conditions of Native Hawaiians are
largely administered by federal agencies other than the
Department of the Interior there is a need to establish an
Interagency Coordinating Group to be composed of officials from
each federal agency that administers Native Hawaiian programs,
establishes or implements policies that affect Native
Hawaiians, or whose actions may significantly or uniquely
impact on Native Hawaiian resources, rights, or lands. The
primary responsibility of the Interagency Coordinating Group is
to coordinate federal policies or actions that affect Native
Hawaiians or impact Native Hawaiian resources, rights, or
lands. The Interagency Coordinating Group is also charged with
assuring that each federal agency developa Native Hawaiian
consultation policy and participate in the development of the report to
Congress.
Section 6. Process for the recognition of the Native Hawaiian governing
entity
This section recognizes the right of the Native Hawaiian
people to organize for their common welfare and to adopt
appropriate organic governing documents. This section provides
the process for federal recognition of the Native Hawaiian
governing entity.
Upon the organization of the Native Hawaiian governing
entity, the adoption of organic governing documents, and the
election of officers of the Native Hawaiian governing entity,
the duly elected officers of the Native Hawaiian governing
entity submit the organic governing documents to the Secretary
of the Interior for certification. Within 90 days of the
submission of the organic governing documents, the Secretary
shall certify that the organic governing documents: establish
the criteria for citizenship in the Native Hawaiian governing
entity; were adopted by a majority vote of the citizens of the
Native Hawaiian governing entity; provide for the exercise of
governmental authorities by the Native Hawaiian governing
entity; provide for the Native Hawaiian governing entity to
negotiate with federal, State, and local governments, and other
entities; prevent the sale, disposition, lease, or encumbrance
of lands, interests in lands, or other assets of the Native
Hawaiian governing entity without the consent of the Native
Hawaiian governing entity; provide for the protection of the
civil rights of the citizens of the Native Hawaiian governing
entity and those subject to the authority of the Native
Hawaiian governing entity; and are consistent with applicable
federal law and the special trust relationship between the
United States and Native Hawaiians.
Within 90 days of the submission of the organic governing
documents, the Secretary shall also certify that the State of
Hawaii supports the recognition of the Native Hawaiian
governing entity by the United States as evidenced by a
resolution or act of the Hawaii State Legislature.
If the Secretary, after receipt of the organic governing
documents, determines that the documents are deficient in
addressing the matters stipulated under Section 6(b)(2)(A)(i)
through (vii), or determines that any provision of the organic
governing documents does not comply with any other applicable
federal law, the Secretary shall return the organic governing
documents to the Native Hawaiian governing entity. The
Secretary shall identify to the Native Hawaiian governing
entity each provision that is determined to be deficient or in
noncompliance and provide a justification for each finding. The
Native Hawaiian governing entity is authorized to amend the
organic governing documents to ensure their compliance with
this Act and may resubmit the organic governing documents to
the Secretary for certification.
The certifications shall be deemed to have been made if the
Secretary has not acted within 90 days of the date that the
duly elected officers of the Native Hawaiian governing entity
have submitted the organic governing documents of the Native
Hawaiian governing entity to the Secretary.
Upon election of the Native Hawaiian governing entity's
officers and the certifications (or deemed certifications) by
the Secretary, federal recognition is extended to the Native
Hawaiian governing entity.
Section 7. Authorization of appropriations
This section authorizes the appropriation of such sums as
may be necessary to carry out the activities authorized.
Section 8. Reaffirmation of delegation of federal authority;
negotiations
This section reaffirms the United States' delegation of
authority to the State of Hawaii in the Admissions Act to
address the conditions of the indigenous, native people of
Hawaii. Upon federal recognition of the Native Hawaiian
governing entity, the United States is authorized to negotiate
with the State of Hawaii and the Native Hawaiian governing
entity regarding the transfer to the Native Hawaiian governing
entity of lands, resources and assets dedicated to Native
Hawaiians.
This section provides that nothing in this Act is intended
to serve as a settlement of any claims against the United
States.
Section 9. Applicability of certain federal laws
This section states that nothing in this Act shall be
construed as an authorization for the Native Hawaiian governing
entity to conduct gaming activities under the authority of the
Indian Gaming Regulatory Act or for eligibility to participate
in any programs and services provided by the Bureau of Indian
Affairs.
Section 10. Severability
This section provides that should any section or provision
of this Act be deemed invalid, the remaining sections,
provisions, and amendments shall continue in full force and
effect.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to express the policy of the United
States regarding the United States relationship with Native
Hawaiians, to provide a process for the reorganization of a
Native Hawaiian government and the recognition by the United
States of the Native Hawaiian government, and for other
purposes.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 23, 2001.
Hon. James V. Hansen,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 617, a bill to
express the policy of the United States regarding the United
States' relationship with Native Hawaiians, to provide a
process for the reorganization of a Native Hawaiian government
and the recognition by the United States of the Native Hawaiian
government, and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Lanette J.
Walker (for federal costs), and Marjorie Miller (for the impact
on state, local, and tribal governments).
Sincerely,
Steven Lieberman
(For Dan L. Crippen, Director).
Enclosure.
H.R. 617--A bill to express the policy of the United States regarding
the United States' relationship with Native Hawaiians, to
provide a process for the reorganization of a Native Hawaiian
government and the recognition by the United States of the
Native Hawaiian government, and for other purposes
H.R. 617 would establish a process for a Native Hawaiian
government to be constituted and recognized by the federal
government. CBO estimates that implementing H.R. 617 would have
no significant impact on the federal budget. The bill would not
affect direct spending or receipts. so pay-as-you-go procedures
would not apply. H.R. 617 contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act and would impose no costs on state, local, or tribal
governments. Enactment of this legislation could lead to the
creation of a new government to represent native Hawaiians. The
transfer of any lands or other assets to this new government,
including lands now controlled by the state of Hawaii, would be
the subject of future negotiations. Similarly, federal payments
to native Hawaiians following recognition of a Native Hawaiian
government would depend on future legislation.
The bill would establish the United States Office for
Native Hawaiian Affairs within the Department of the Interior
(DOI) to coordinate services to native Hawaiians. In addition,
H.R. 617 would establish the Native Hawaiian Interagency
Coordinating Group to coordinate federal programs and policies
that affect native Hawaiians. Based on information from DOI,
CBO expects that the agency would require up to five additional
employees to implement the bill. Therefore, CBO estimates that
implementing H.R. 617 would cost less than $500,000 a year,
subject to the availability of appropriated funds.
The CBO staff contacts for this estimate are Lanette J.
Walker (for federal costs), and Marjorie Miller (for the impact
on state, local, and tribal governments). This estimate was
approved by Peter H. Fontaine, Deputy Assistant Director for
Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
This bill makes no changes in existing law.